1 Public international law
ICJ – Disputes between states with ratione materiae, ratione personae, ratione temporae.
Jurisdiction of ICJ – optional clause, special agreement, matters provided for treaties and conventions, forum
prorogatum, transferred jurisdiction PCIJ.
Article 96
(1) The General Assembly or the Security Council may request the International Court of Justice to
give an advisory opinion on any legal question
(2) Other organs of the UN and specialised agencies, which may at any time be so authorised by the
general assembly, may also request advisory opinions of the court on legal questions arising within
the scope of their activities.
State Responsibility – ARSIWA customary law.
Art. 1 Every internationally wrongful act of a state entails the international responsibility of that state.”
Art. 2 There is an internationally wrongful act of a state when conduct consisting of an act or omission is:
Attributable to the state
Constitutes a breach of international law
There are no circumstances precluding wrongfulness
+ Reparation for injury
State responsibility Article 2 - breach + attribution (art. 4-11)
1. Attributable to the state. (art. 4-11)(4) conduct of organs of the state
a. (4) Attributable organ of state
b. (5) exercising elements of governmental authority
c. (6) organs placed at the disposal of the state
d. (7) excess authority
e. (8) conduct directed or controlled by the state
f. (9) conduct in the absence or default of the official authorities
g. (10) insurrectional or other movement – new gov
h. (11) conduct acknowledged and adopted by a state as it’s own
Key ones:
i. Organ (4)
j. Effective control (8)
i. Specific conduct instruction/direction/control
ii. Nicaragua 1987 – very specific instructions to the group, financing alone is not enough for
effective control.
k. Acknowledgement and adoption (11)
i. Tehran hostages’ case 1979
ii. By virtue of saying something, a state can turn non-state conduct into acts of its own.
2. Constitutes a breach of international obligation. (art.3)
There is a breach of an IO by a state when an act of that state is not in conformity with what is required
of it by that obligation. Refer to primary sources (treaty, custom, general principles)
a. Seminar – constitutes a breach of Article 3 Geneva Convention
b. Positive obligation:
i. A state’s wrongful failure to act is not less attributable to it than its wrongful actions.
A state’s international responsibility is therefore established equally on the basis of
wrongful acts and wrongful omissions.
c. Omissions
i. Art. 14(3) – prevention
, 1. The breach of IO requiring a state to prevent a given event occurs when the
event occurs and extends over the entire period during which the event
continues and remains not in conformity with that obligation.
ii. Art. 15(1) – series of omissions
1. The breach of an IO by a state through a series of actions or omissions
defined in aggregate as wrongful occurs when the act or omission occurs,
which, taken with the other omissions, is sufficient to constitute the
wrongful act.
iii. State knowledge of a need to act, state capacity, and causation
iv. General principles: legitimate expectations, reasonableness and rationality.
3. Circumstances precluding wrongfulness (art. 20-25)
a. Consent
i. Iraq gave consent to fight off ISIS
b. Self-defence
c. Countermeasures
i. If one does something wrong, some other state can also do it.
1. Economic sanctions - countermeasures
d. Force majeure
i. Had no other option – natural disasters
e. Distress
i. I had another option, but if I did, people would die
f. Necessity
i. States invoke to protect national interests – a narrow interpretation or it becomes an
excuse for non-compliance
4. Reparations
a. Restitution
i. Going back to the original situation
b. Compensation
i. Money
c. Satisfaction
Role of the ICJ
Jurisdictional grounds
1. Special agreement
a. Consent to the jurisdiction of the court – the only way for the ICJ to have jurisdiction
2. Treaties
a. The Geneva Convention does not have that clause
3. Optional clause
a. States submit a declaration to the court
4. Forum prorogatum
a. By acting in a particular way, the court has jurisdiction
Case law
Corfu Channel (1949) UK v. Albania
Due diligence – duty of care
Laying of the minefield could not have been accomplished without the knowledge of the Albanian
government.
Every state has the obligation not to knowingly allow its territory to be used for acts contrary to the
rights of other states.
Nothing was attempted by the Albanian authorities to prevent the disaster omission
, Tehran Hostages (1980) USA v. Iran
Attribution + breach of international obligation
[attribution] – Can the acts be regarded as imputable to Iran?
[breach] – what obligations?
Part 1
Phase 1: Attribution
No suggestion has been made that the militants have a form of official status as recognised agents or
organs of the state. Thus, not imputable to that state.
However, the government failed to take appropriate steps; this failure was due to more than mere
negligence or lack of appropriate means.
The inaction of the Iranian government by itself constitutes a clear and serious violation of its
obligation to the US under the provisions… of the 1961 VCDR and 1963 VCCR
Phase 2: Violation of norm
Iran was placed under the categorical obbligation take appropriate steps to ensure the protection of
the US embassy
Judgment part 1 – the inaction of the Iranian government by itself constitutes a clear and serious violation of its
obligation to the US under the provisions… of the 1961 VCDR and 1963 VCCR
Part 2 – after occupation
Phase 1: Violation
Action required of the Iranian government by VC and IL, was manifest. Its plain duty was at once to
make every effort, and to take every appropriate step to bring these flagrant infringements to a speedy
end.
Phase 2: Attribution – Acknowledgement and adoption
Expressions of approval of the action of the militants by the Iranian authorities.
The result of a policy was fundamentally to transform the legal nature of the circumstances.
The approval given to these facts by Khomeini and other organs of the state and the decision to
perpetuate them translated the continuing occupation of the embassy and detention of the hostages into
acts of that state.
Circumstances precluding wrongfulness
Not present.
Legal consequences arising from Israel in the occupied Palestinian territory – advisory opinion requested by
UNGA 2024
18
(a) What are the legal consequences arising from the ongoing violation by Israel of the right of the Palestinian
people to self-determination, from its prolonged occupation, settlement and annexation of the Palestinian
territory occupied since 1967?
(b) What are the legal consequences that arise for all states and the UN from this status?
Legal consequences for Israel
Such presence on the territory constitutes a wrongful act entailing its international responsibility; it
should provide full reparation.
Legal consequences for other states
Israel violated obligations erga omnes. All states are not to recognisìse as legal the situation and not to
render aid or assistance. For all UN member states, they shall ensure that any impediment is brought to
an end, + obbligation to ensure compliance by Israel with international humanitarian law.
ICJ – Disputes between states with ratione materiae, ratione personae, ratione temporae.
Jurisdiction of ICJ – optional clause, special agreement, matters provided for treaties and conventions, forum
prorogatum, transferred jurisdiction PCIJ.
Article 96
(1) The General Assembly or the Security Council may request the International Court of Justice to
give an advisory opinion on any legal question
(2) Other organs of the UN and specialised agencies, which may at any time be so authorised by the
general assembly, may also request advisory opinions of the court on legal questions arising within
the scope of their activities.
State Responsibility – ARSIWA customary law.
Art. 1 Every internationally wrongful act of a state entails the international responsibility of that state.”
Art. 2 There is an internationally wrongful act of a state when conduct consisting of an act or omission is:
Attributable to the state
Constitutes a breach of international law
There are no circumstances precluding wrongfulness
+ Reparation for injury
State responsibility Article 2 - breach + attribution (art. 4-11)
1. Attributable to the state. (art. 4-11)(4) conduct of organs of the state
a. (4) Attributable organ of state
b. (5) exercising elements of governmental authority
c. (6) organs placed at the disposal of the state
d. (7) excess authority
e. (8) conduct directed or controlled by the state
f. (9) conduct in the absence or default of the official authorities
g. (10) insurrectional or other movement – new gov
h. (11) conduct acknowledged and adopted by a state as it’s own
Key ones:
i. Organ (4)
j. Effective control (8)
i. Specific conduct instruction/direction/control
ii. Nicaragua 1987 – very specific instructions to the group, financing alone is not enough for
effective control.
k. Acknowledgement and adoption (11)
i. Tehran hostages’ case 1979
ii. By virtue of saying something, a state can turn non-state conduct into acts of its own.
2. Constitutes a breach of international obligation. (art.3)
There is a breach of an IO by a state when an act of that state is not in conformity with what is required
of it by that obligation. Refer to primary sources (treaty, custom, general principles)
a. Seminar – constitutes a breach of Article 3 Geneva Convention
b. Positive obligation:
i. A state’s wrongful failure to act is not less attributable to it than its wrongful actions.
A state’s international responsibility is therefore established equally on the basis of
wrongful acts and wrongful omissions.
c. Omissions
i. Art. 14(3) – prevention
, 1. The breach of IO requiring a state to prevent a given event occurs when the
event occurs and extends over the entire period during which the event
continues and remains not in conformity with that obligation.
ii. Art. 15(1) – series of omissions
1. The breach of an IO by a state through a series of actions or omissions
defined in aggregate as wrongful occurs when the act or omission occurs,
which, taken with the other omissions, is sufficient to constitute the
wrongful act.
iii. State knowledge of a need to act, state capacity, and causation
iv. General principles: legitimate expectations, reasonableness and rationality.
3. Circumstances precluding wrongfulness (art. 20-25)
a. Consent
i. Iraq gave consent to fight off ISIS
b. Self-defence
c. Countermeasures
i. If one does something wrong, some other state can also do it.
1. Economic sanctions - countermeasures
d. Force majeure
i. Had no other option – natural disasters
e. Distress
i. I had another option, but if I did, people would die
f. Necessity
i. States invoke to protect national interests – a narrow interpretation or it becomes an
excuse for non-compliance
4. Reparations
a. Restitution
i. Going back to the original situation
b. Compensation
i. Money
c. Satisfaction
Role of the ICJ
Jurisdictional grounds
1. Special agreement
a. Consent to the jurisdiction of the court – the only way for the ICJ to have jurisdiction
2. Treaties
a. The Geneva Convention does not have that clause
3. Optional clause
a. States submit a declaration to the court
4. Forum prorogatum
a. By acting in a particular way, the court has jurisdiction
Case law
Corfu Channel (1949) UK v. Albania
Due diligence – duty of care
Laying of the minefield could not have been accomplished without the knowledge of the Albanian
government.
Every state has the obligation not to knowingly allow its territory to be used for acts contrary to the
rights of other states.
Nothing was attempted by the Albanian authorities to prevent the disaster omission
, Tehran Hostages (1980) USA v. Iran
Attribution + breach of international obligation
[attribution] – Can the acts be regarded as imputable to Iran?
[breach] – what obligations?
Part 1
Phase 1: Attribution
No suggestion has been made that the militants have a form of official status as recognised agents or
organs of the state. Thus, not imputable to that state.
However, the government failed to take appropriate steps; this failure was due to more than mere
negligence or lack of appropriate means.
The inaction of the Iranian government by itself constitutes a clear and serious violation of its
obligation to the US under the provisions… of the 1961 VCDR and 1963 VCCR
Phase 2: Violation of norm
Iran was placed under the categorical obbligation take appropriate steps to ensure the protection of
the US embassy
Judgment part 1 – the inaction of the Iranian government by itself constitutes a clear and serious violation of its
obligation to the US under the provisions… of the 1961 VCDR and 1963 VCCR
Part 2 – after occupation
Phase 1: Violation
Action required of the Iranian government by VC and IL, was manifest. Its plain duty was at once to
make every effort, and to take every appropriate step to bring these flagrant infringements to a speedy
end.
Phase 2: Attribution – Acknowledgement and adoption
Expressions of approval of the action of the militants by the Iranian authorities.
The result of a policy was fundamentally to transform the legal nature of the circumstances.
The approval given to these facts by Khomeini and other organs of the state and the decision to
perpetuate them translated the continuing occupation of the embassy and detention of the hostages into
acts of that state.
Circumstances precluding wrongfulness
Not present.
Legal consequences arising from Israel in the occupied Palestinian territory – advisory opinion requested by
UNGA 2024
18
(a) What are the legal consequences arising from the ongoing violation by Israel of the right of the Palestinian
people to self-determination, from its prolonged occupation, settlement and annexation of the Palestinian
territory occupied since 1967?
(b) What are the legal consequences that arise for all states and the UN from this status?
Legal consequences for Israel
Such presence on the territory constitutes a wrongful act entailing its international responsibility; it
should provide full reparation.
Legal consequences for other states
Israel violated obligations erga omnes. All states are not to recognisìse as legal the situation and not to
render aid or assistance. For all UN member states, they shall ensure that any impediment is brought to
an end, + obbligation to ensure compliance by Israel with international humanitarian law.
